HomeMy WebLinkAboutRES NO 79-92RESOLUTION NO. 79-92
A RESOLUTION ESTABLISHING THE DISABILITY
RETIREMENT REVIEW CO~I'--,'~E AND THE
RETIREMENT APPEALS BOARD.
WHEREAS, on May 20, 1992, by Resolution No. 78 -92, the
City Council rescinded Resolutions No. 6-74, No. 7-74 and No. 4-80
regarding establishing procedures and regulations for the discharge
of duties and responsibilities of City Manager and Retirement
Appeals Board concerning disability retirement of local safety
members under the Public Employees' Retirement Law of the State of
California; and
WHEREAS, it is the intent of this Council to have one
resolution, rather than three, establishing the procedures and
regulations concerning disability retirements of local safety
members; and
WHEREAS, it is the intent of this Council to establish
the procedures and regulations for the discharge of duties and
responsibilities of the Disability Retirement and Review Committee
and the Retirement Appeals Board as well as the duties and
responsibilities of the City Manager concerning disability
retirement of local safety members under the Public Employees
Retirement Law of the State of California.
follows:
NOW, THEREFORE, IT IS HE~.,~ RESOLVED AND OP, DERED as
DISABILITY RETIREMENT ~EVIEW COMMI'~-£~.
FOR SA~T~ MEMBerS.
All applications for disability retirement shall be reviewed
by the Disability Retirement Review Committee for Safety
Members, ("Committee"').
Said "Committee" shall consist of:
1. The appropriate department head, i.e., fire safety member
- Fire Chief, police safety member - Police Chief;
2. A representative from the City Attorney's Office; and
3. A representative from the Risk Management Department.
OR;Q~k'AL
The Department Head member shall be the Chairperson of this
"Committee."
If the application for disability retirement pertains to
the Police Chief or the Fire Chief, then that particular
Chief shall not serve as a member of the Committee; and
2. The non-affected Chief shall then serve and shall be
chairperson.
Upon receipt of an application for disability retirement by or
on behalf of a local safety member, the "Committee" shall:
Within five (5) working days after receipt of said
application, notify the safety member to file with the
"Committee," within ten (10) days, any and all evidence
in the form of written medical reports, certificates or
other documents which the safety member wishes the City
to consider in making the determination required to be
made.
Obtain all claims and medical reports filed with Risk
Management for workers compensation benefits.
Cause a factual investigation of the circumstances
surrounding the cause of the injury or disease to assist
in the following determination:
a)
Whether the local safety member is
incapacitated for the performance of the
duties of his/her position, and
b)
Whether the disability or death is the result
of injury or disease arising out of and in the
course of the local safety member in
employment.
Arrange for a medical examination of the local safety
member by the City Physician in cases where the
"Committee" decides this is necessary or desirable. The
"Committee" shall then notify the local safety member
that he is required to report at a time and place
specified. The City Physician shall also receive copies
of all medical reports prior to seeing the local safety
member.
Within thirty (30) days after receipt of an application
for disability retirement by a local safety member, the
"Committee" shall make their recommendations to the City
Manager.
The Chairperson of the "Committee" shall continue to
monitor the application until final disposition.
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OR;G:NAL
Any deviation from these procedures shall be by mutual consent
of the local safety member, the
Manager.
II.
DETERMINATIONS BY CITY MANAGER
The City Manager shall:
Independently review the local safety member's application,
including the recommendations of the Disability Retirement
Review Committee and all of the medical evidence provided to
the above-mentioned "Committee".
Require the department head or his designee, employing the
safety member to file with the City Manager a complete report
on a form supplied by the City Manager.
Obtain a report from the Risk Management Office as to the
status of the Safety Member's workers compensation benefits
under Section 4850 of the Labor Code.
Review the safety member's employment status, pay status,
accrued vacation and sick leave entitlement and accrued
overtime or compensatory days off.
Gather any other information necessary to determine the
effective date of the retirement.
Pursuant to the authority delegated to the City Manager by
Resolution 5-74, make the following determinations:
Whether the applicant, a local safety member, is
incapacitated physically or mentally for the performance
of the duties of his position?
Whether the disability or incapacity for performance of
duty is permanent or of extended and uncertain duration?
e
Whether the disability is industrial, i.e., arising as a
result of injury or disease out of and in the course of
employment as a local safety member?
4. The effective date of retirement of the applicant for
disability retirement, and
Whether a local safety meraber who has been retired for
disability has ceased to be disabled for his position
held at retirement?
OR;G~r~AL
He
Within fifteen (15) working days upon receipt of the medical
evidence, documents and recommendations by the "Committee,"
the City Manager shall either approve or deny the disability
retirement or reinstatement and, if approved, determine
whether said disability is either industrial or nonindustrial.
The City Manager shall, within three (3) working days, notify
the local safety member and PERS of his determination and if
the determination of the City Manager denies in whole or part
any of the benefits sought in the application, the notice
shall advise the applicant of his right to appeal as
hereinafter provided.
III.
APPEALS BOARD
Whereas, it is also the intent of this Council that the
safety member shall have the right to appeal, in writing, any
determination made by the City Manager, this Council establishes
the Retirement Appeals Board of Bakersfield for Safety Members,
hereinafter called the "Appeals Board."
A. The "Appeals Board" shall consist of three (3) members, as
follows:
When the appeal is by a law enforcement safety member,
the Board shall consist of two (2) members of the Civil
Service Board of the Police Department of the City of
Bakersfield and one (1) member of the Civil Service Board
of the Fire Department of the City of Bakersfield;
When the Appeal is by a fireperson, the "Appeal Board"
shall consist of two members of the Civil Service Board
for the Fire Department of the City of Bakersfield and
one (1) member of the Civil Service Board for the Police
Department of the City of Bakersfield.
B. Procedures for Appeal Hearings
Local safety members shall have ten (10) days upon
receipt of the City Manager's determination to file a
written notice of appeal of the City Manager;
Failure of the safety member to file a timely Appeal
shall render the determination of the City Manager final
and binding.
Within five (5) days upon receipt of the safety member's
request for Appeal, the City Manager shall notify the
"Appeals Board" by sending said request and the
classification of the safety member to the Chairpersons
of the Police and Fire Civil Service Commission,
hereinafter called the "Commission." ~%AK~
OR;G~AL
Upon notice of the Appeal to the Chairperson of the
Police and Fire Commissions, the members of each
respective commission shall select the appropriate number
of members and also determine which member(s) shall sit
on the appeals board for that particular hearing.
The Board shall then delegate the appeal to an
Administrative Law Judge as defined under Section 11502
of the Administrative Procedures Act.
(See Section IV, Administrative Law Judge, supra.)
Proposed Decision by Administrative Law Judge (ALJ).
Upon receipt of the "Proposed Decision" by the
Administrative Law Judge, the "Appeal Board" shall
consider same at its next meeting.
The "Appeals Board" shall mail a copy of the
Administrative Law Judge's proposed decision to the City
Manager, the Chairperson of the "Committee," and the
safety member and shall notify all parties as to the date
the "Appeals Board" will consider the decision. Said
hearing shall take place within ten (10) to thirty (30)
days of receipt of the decision.
Thereafter, either party, within five (5) days of receipt
of the proposed decision, may submit written argument to
the "Appeals Board" and to the other party in support or
opposition to the proposed decision.
Either party may also present oral arguments during the
"Appeal Board" hearing. Such argument shall last no
longer than five (5) minutes and the other party shall
have three (3) minutes to rebut such argument.
At the conclusion of the arguments, the "Appeals Board"
may question the parties or their counsel, and shall then
take the matter under advisement.
Order of the Apl~eals Board.
1. Within thirty (30) days after the "Appeals Board"
hearing, the "Appeals Board" shall either:
a)
Adopt the proposed decision of the
Administrative Law Judge in its entirety;
b) Modify all or parts of the decision;
o)
Reject the recommendation of the
Administrative Law Judge in its entirety; or
d)
Order all or parts of a hearing to be reheard
by the same or another Administrative Law
Judge.
The "Appeals Board" shall take no action to modify all or
parts of the decision or reject the recommendation of the
Administrative Law Judge without first reviewing a
certified transcript or certified recording of the
hearing conducted by the Administrative Law Judge.
The thirty (30) day time period mentioned in Section D
(1) may be suspended for a reasonable period, not to
exceed sixty (60) days, in the event it becomes necessary
to prepare a transcript of the proceedings.
Within seven (7) days of the determination, the "Appeals
Board" shall give written notice to the City Manager and
to the safety member.
Said written notice of determination shall include the
reasons for rejection, modification, or rehearing of the
Administrative Law Judge's decision.
e
The decision of the "Appeals Board" shall be final and
binding, except,
The safety member shall have thirty (30)
days following the decision to file a
writ of mandate pursuant to section
1094.6 of the California Code of Civil
Procedure and section 11523 of the
Administrative Procedures Act.
E. Reconsideration.
Within ten (10) days after receipt of the final
determination of the "Appeals Board," either party may
file a request for reconsideration with "Appeals Board"
only on one or more of the following grounds:
a) The findings of fact were procured by fraud,
b)
The evidence does not justify the findings of
fact, and/or
c)
There is new evidence which should have been
considered but was not available at the time
of the hearing.
Upon receiving a request for reconsideration, the
"Appeals Board" may:
a) Deny the request, or
b) Review the request itself either through
written or oral argument,
A request for reconsideration does not suspend the thirty
(30) day time period for filing a writ of manda~F~
OR;~£
IV.
ADMINISTRATIVE LAW JUDGE
The Administrative Law Judge, hereinafter known as the "ALJ,"
shall be vested with the same powers resting in the "Appeals
Board" with respect to the conduct of the hearings, with the
exception that the decisions of the "ALJ" shall not be binding
upon the "Appeals Board."
The Safety Member shall be given a minimum of 30 days notice
of the "ALJ" hearing.
All request for continuance of hearing shall be considered in
accordance with Section I(E) of this Resolution.
In accordance with the Administrative Procedures Act,
hereinafter known as the "A.P.A.," the hearing need not be
conducted under the technical rules of evidence.
Unless otherwise admissible, hearsay evidence may be used
solely for the purpose of supplementing or explaining a
finding but shall not be sufficient in itself to support
a finding;
2. Oral evidence shall be taken only under oath or
affirmation.
Each party shall have the right to call and examine
witnesses, to introduce exhibits, to cross-examine
witnesses on any matter relevant tot he issues, to
impeach any witness and to rebut any evidence.
Within thirty (30) days following the conclusion of the
hearing and the submission of the case, the Administrative Law
Judge shall prepare a proposed decision and submit such
decision to the "Appeals Board" for consideration. The
decision shall set forth findings of fact and conclusions of
law.
.......... o0o ..........
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I HEREBY CERTIFY that the foregoing Resolution was passed
and adopted by the Council of the City of Bakersfield at a regular
meeting thereof held on May 20, 1992 , by the following vote:
~[~¥ C~RK a~d ~Z OEE[C[O of t~e
Council of the City of Bakersfield
APPROVED May 20, 1992
CLARENCE E. MEDDERS
MAYOR of the City of Bakersfield
APPROVED AS TO FORM:
~NCE M. LUNARDINI ~
CITY ATTORNEY, City of ~akersfield
LTC/meg
RET-APP.R-4
5/7/92
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